M. TONY SHERMAN, APPELLANT,
v.
ALBERT L. WEINTRAUB AND A. JAY CRISTOL, A PARTNERSHIP, APPELLEES
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The appellate court affirmed a summary judgment for the plaintiff, holding that the defendant's opposing affidavit was insufficient to create a genuine issue of material fact. The court also found no reversible error in considering a late-served affidavit.
1. No, the defendant's affidavit was insufficient as it merely stated legal conclusions and did not set forth facts admissible in evidence. 2. No, considering the late-served affidavit was not reversible error because the plaintiff was entitled to judgment even without it.
“This affidavit was insufficient to raise a genuine issue as to a material fact because rule 1.36(e), Florida Rules of Civil Procedure, 30 F.S.A., requires: "Supporting and opposing affidavits * * * shall set forth such facts as would be admissible in evidence * *”
Establishes the standard for opposing affidavits in summary judgment proceedings and why the defendant's affidavit failed.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff sued for personal services rendered, and the defendant appealed a summary final judgment entered against him. The defendant argued that …
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The defendant appeals a summary final judgment for plaintiff. The action was to recover for personal services rendered. It is urged that (a) there was a genuine issue as to material facts, and (b) the trial judge erred in considering an affidavit of plaintiff served three days before the time fixed for the hearing.
The appellee as movant for summary judgment timely served affidavits sufficient to establish each element of his case. The appellant attempted to reinforce his denial of liability by an affidavit which did no more than the answer had done, i. e., denied liability as a conclusion of law. This affidavit was insufficient to raise a genuine issue as to a material fact because rule 1.36(e), Florida Rules of Civil Procedure, 30 F.S.A., requires: “Supporting and opposing affidavits * * * shall set forth such facts as would be admissible in evidence * *
*422Inasmuch as the plaintiff would have been clearly entitled to a judgment without the affidavit which was not timely filed, it was not reversible error to consider the unnecessary affidavit improperly served •contrary to the rules.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA 1978)…t in opposition to the motion for summary judgment was insufficient as a matter of law because it alleged conclusions of law without supporting facts. Cf. Freeman v. Equilease Corporation, 346 So. 2d 619 (Fla. 3d DCA 1977); and Sherman v. Weintraub, 132 So. 2d 421 (Fla. 3d DCA 1961). The defendant was entitled to a judgment as a matter of law. See Miller-Dunn Co. v. Green, 154 Fla. 72, 16 So. 2d 637 (1944). Affirmed.…
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Heitmeyer v. Sasser, 664 So. 2d 358 (Fla. 4th DCA 1995)…uine material fact issue); Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2d 174 (Fla. 3d DCA 1971) (affidavit in support of summary judgment may not be based on factual conclusions or conclusions of law); Sherman v. Weintraub, 132 So. 2d 421 (Fla. 3d DCA 1961) (affidavit of defendant, denying liability as a conclusion of law, was insufficient to raise genuine issue as to material fact); Pino v. Lopez, 361 So. 2d 192 (Fla. 3d DCA), cert, denied, 365 So. 2d 714 (Fla.1978) (plaintiffs affi…
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Freeman v. Equilease Corp., 346 So. 2d 619 (Fla. 3d DCA 1977)…to amend; but Freeman failed to file an amended counterclaim. Last, Freeman’s affidavit in opposition to motion for summary judgment is insufficient since he merely alleged a conclusion of law without any supporting facts. Cf. Sherman v. Weintraub, 132 So. 2d 421 (Fla.3d DCA 1961). Affirmed.…
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